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The subject of copyright often provokes heated debate. There are those who feel strongly that copyright laws are too restrictive and enforced too rigidly, and others who think that they provide the means for creators to get a fair return for their work. This article takes a look at these arguments and, in particular, how they relate to Christian music.
Copyright laws have been around in one form or another for hundreds of years. They have found worldwide acceptance, with all developed countries and most developing ones providing copyright protection, under the umbrella of international treaties.
In spite of copyright’s long history and well established principles, in the last few years a considerable amount of anti-copyright sentiment has arisen. This can be traced to the explosion of new technology following the advent of the personal computer and new communication channels such as the Internet. People are now able to copy and communicate creative material, such as books, music, art and film, in a way that was not possible before. And because they can, they feel they ought to be allowed to. Copyright laws are about regulating the copying and dissemination of material to the benefit of the creators of that material and, as such, are seen by consumers of that material as standing in the way of what ought to be their right to use it.
One argument which is often raised by critics of copyright is that the making of a copy of a work, such as a copy of sheet music or a copy of an MP3 file does not deprive the creator of their work so it can’t be equated to stealing. The problem with this argument is that making a copy of a work without the owner’s permission does deprive that owner of the potential to sell a copy or earn a licence fee for that copy. It’s easy to see that if everyone made a copy without the permission of the creator, while still “possessing” their work, they would be deprived of virtually the whole benefit of that work.
Some argue that not every copy made represents a lost sale because a person who makes a copy is not necessarily someone who would buy a copy or pay a licence fee to make a copy. This is probably true to a point, but survey evidence suggests that there is a definite correlation between the decline in sales of recordings and the availability of unauthorised downloads.
Another argument is that creators should make money from other avenues, such as selling concert tickets. This argument suggests that there is more inherent value in a song played at a concert than in a song captured on a recording. In reality it’s an acknowledgement that there is no way to physically get into a concert without paying! This highlights the erroneous assumption that is often made by critics of copyright is that if you can do something, like ripping a track from CD and posting it on the Internet, then you ought to be allowed to.
An Australian film director whose film was illegally copied and made available online last year said “Being a low budget film I didn't get paid much and hoped to make some money for all my effort from the films' sales…The fact that [the film] had been pirated and was online within days of being finished is upsetting. How are Australian film producers like me meant to make a living from our films if people pirate the film and watch it for free?"
Those who feel that copyright laws ought to be relaxed in favour of users have received a boost in the form of the Creative Commons movement. Established in the United States in 2001 by Stanford University law professor Lawrence Lessig, Creative Commons encourages and enables creators to allow the world to use their works for free under a creative commons licence. Inspiration for Creative Commons came largely from the open source software movement. Similar Creative Commons project have been established in Australia and many other countries.
The sentiment behind the Creative Commons movement has migrated to the sphere of Christian music. There are now websites and blogs dedicated to the idea that copyright is too restrictive, particularly as it applies to Christian music, including the use of recordings and sheet music. These sites encourage Christians to take a less proprietorial view of copyright and to allow the use of their works for free for ministry purposes.
So is copyright a problem? Should creators make their works available for all to use for free under Creative Commons licences? Should Christians feel obliged to provide free access to their works and give up any right to payment?
Copyright is designed to encourage the creation of works by providing the means for creators to receive a return from people who use and enjoy, and in some cases profit from, their works. Copyright is also important in providing the basis on which publishers, record labels and other intermediaries will invest in the dissemination of works. If anyone could simply copy and use, or copy and sell, everything that was produced, it would not be worth a publisher’s while continuing to invest in the creation of those products.
Copyright isn’t just about money, however. It’s also about the ability of creators and publishers to exercise some control over how and in what contexts their works are used in order to ensure the integrity of those works.
One important aspect of copyright law to bear in mind is that protection is automatic in Australia. As soon as a person writes a song, it is protected by copyright and that person owns a set of rights which attach to the song, including the exclusive right to make copies of that song and to perform it in public. This means that, unlike in the US where there is a (voluntary) registration system, a creator owns an enforceable property right without having to take any steps to give effect to that right. The assertion of copyright ownership is, therefore, just stating a fact.
During the centuries of its development, copyright law has focused not just on the ownership side of the equation. There has been consistent acknowledgement of the user community’s need for access to copyright material in certain situations. This acknowledgment has led to a very large number of exceptions to the rights of copyright owners which allow the use of copyright material without the permission of the owner in some cases without payment and in some cases with payment. Examples of these exceptions in the Australian context include fair dealing for research or study, criticism or review, and parody or satire, and use by educational institutions and libraries.
In the early 1980s there was a pubic enquiry conducted by the Copyright Law Review Committee into whether churches in Australia ought to be granted special exemptions that would facilitate their use of copyright material. Representatives from all the major denominations made submissions as did organisations representing copyright owners. The Committee concluded that there was no justification for any special exception for churches and they need to make arrangements for compliance with copyright laws in the same ways as most other groups in the community have to.
There is no doubt that compliance with copyright laws, for organisations such as churches, can be time consuming and sometimes costly and can inhibit what they want to be able to do. However, this is true of compliance with any set of laws. Like other laws, copyright law aims to promote the greater good – by providing a means by which creators, who create works for the community at large to enjoy, can be rewarded. It is also fair to say that copyright compliance for churches has been made easier and more cost effective by copyright collecting societies, such as CCLI and APRA which remove the need to get permission from every copyright owner individually.
Copyright law has always been flexible enough to allow creators and other copyright owners to decide the basis on which they will make their works available. The granting of licences, for free or otherwise, has always been possible. It is true that the Creative Commons project has made the grant of free licences somewhat easier because it has provided all the documentation for this. On the other hand, Creative Commons licences are a blunt instrument in that they have the effect of granting a licence to anyone, anywhere in the world for any purpose, except in the case of the licences that are restricted to “non-commercial” use.
Copyright law forms the basis of many legitimate business models and many creators rely on copyright licensing fees for their income. Creators are, of course free to decide that they will not charge for the use of their works, or for certain uses, but they should think carefully about this before doing so. Creators shouldn’t be too easily swayed by critics of copyright (who are usually those who do not rely on copyright licensing fees for their livelihood). If Christians want to make their works freely available for churches to use, for example, then Creative Commons licences are probably not the best way to achieve this as they are too broad and could allow undesirable uses.
Virginia Morrison is a Copyright Lawyer and Consultant she can be contacted at
Morrison Legal Pty Ltd
PO Box 72
Artarmon 1570
Phone: +61 2 9411 5471
Email: morlegal@optusnet.com.au
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